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Monday, July 16, 2012

Why won't Romney release his 2009 tax return?

Increasingly, everyone (including Republicans such as George Will, Matthew Dowd, and William Kristol) agrees that the reason for Romney's reluctance to release any pre-2010 tax return might be that what it would show is worse than all the heat he is taking for non-disclosure.

But what could that be? Well, I certainly don't know either, but here are some salient points:

1) We know from the 2010 tax return, in which he had a net capital loss carryforward from 2009, that he zeroed out his net capital gains - including from carried interest Bain income - in 2009.

2) 2009 was the last year in which he received certain Bain payments as the playout of his "retroactive retirement."

3) It's been hard to understand what benefit he thought he was getting from the Swiss bank account, and there was an IRS amnesty program in 2009 for fraudulent nondisclosure of offshore income. If he had to come clean in 2009, this might be embarrassing, especially given that there was an iron fist inside the IRS leniency offer (i.e., if you held out, they might get you without any amnesty).

From the first two items above, it may be a reasonable guess that Romney had a lot more gross income in 2009 than 2010 and 2011, yet paid less tax or even zero tax.

This might have had to involve, not just zeroing out capital gains via "loss harvesting" in response to the down 2009 stock market. but also creating tax shelter losses to offset ordinary income.

We know from attachments to the 2010 return that some of his "blind trusts" were engaged in transactions identified by the IRS in Notice 2002-35, which pertains to fake loss-generating scams that involved abusing and misinterpreting the notional principal contract regulations. So far as the blind trust aspect of that is concerned, note that Romney himself once called blind trusts an "age-old ruse." But I am unclear about how much to make of the 2010 disclosure, given that it would have undermined expecting to get the tax benefits if the deals at issue were complete scams. So it has struck me as conceivable that the blind trusts did something in the ballpark of required 2002-35 disclosure but less extreme and more legally defensible.

Still, willingness to do extremely aggressive tax sheltering (such as through loss generation from circular flows of cash) in 2009 would not come as a huge surprise, even though it seems like a dumb idea if you are preparing to run for president again. I wonder if the very fact that he was running for president might have led him to figure that he was audit-proof, on the ground that the IRS would look too political if it started challenging things.

I'm not sure how much credence to give this, but a Huffington Post commentator claims that, "according to people close to the situation, Romney would drop out of the presidential race before ever releasing further tax returns." That certainly sounds dire, and a huge 2009 gross income plus huge claimed losses, perhaps even topped off by amnesty income reports, would be one way of getting there.

20 comments:

Right now and for a while into the future he is sort of immune to an audit - in fact after issues involving illegal accessing of public figures tax returns at the IRS you can be pretty sure that Romney's returns are being tracked and any improper "browsing" by IRS employees would be instantly dealt with.

But if the tax returns are made public and there is a huge outcry over some aggressive tax sheltering by Romney, this would be a game changer. The IRS might be obliged to open an investigation.

Would the son-of-Boss settlement leave a trail on the return, or is it just reflected in a closing agreement?

I had a dialogue in the comments section on Balloon-Juice last night with someone who has convinced himself that Romney participated in OVDI, and I had to explain that there's no way of finding out because the settlement payment only shows up on a closing agreement.

"Romney’s reluctance to release any pre-2010 tax return might be that what it would show is worse than all the heat he is taking for non-disclosure."

While that is true for now, it won't hold in the long run. Speculation will only get worse and worse, at which point whatever is wrong with Romney's pre-2012 returns will be better than where the speculation is. This is the logically valid inference to draw, so it's only a matter of time before the public realizes it. Romney should accept whatever blow-back he receives now rather than wait until October.

His tax records are in the same folder as Obamas colledge records showing he got into these schools by claiming he was a foreingner. He has been gaming the system all his life. What excactly has he ever accomplished?

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Looks like to me if 40% of the population pays only 6% of the burden, it is that group who is getting plenty of 2013 tax brackets advantages. I'm not saying this is unfair. Saying the rich aren't paying their fair share just is not supported by the raw data. So, I'm wondering why this is said. I just can't figure it out.

Looks like to me if 40% of the population pays only 6% of the burden, it is that group who is getting plenty of 2013 tax brackets advantages. I'm not saying this is unfair. Saying the rich aren't paying their fair share just is not supported by the raw data. So, I'm wondering why this is said. I just can't figure it out.

About Me

I am the Wayne Perry Professor of Taxation at New York University Law School. My research mainly emphasizes tax policy, government transfers, budgetary measures, social insurance, and entitlements reform. My most recent books are (1) Decoding the U.S. Corporate Tax (2009) and (2) Taxes, Spending, and the U.S. Government's March Toward Bankruptcy (2006). My other books include Do Deficits Matter? (1997), When Rules Change: An Economic and Political Analysis of Transition Relief and Retroactivity (2000), Making Sense of Social Security Reform (2000), Who Should Pay for Medicare? (2004), Taxes, Spending, and the U.S. Government's March Towards Bankruptcy (2006), Decoding the U.S. Corporate Tax (2009), and Fixing the U.S. International Tax Rules (forthcoming). I am also the author of a novel, Getting It. I am married with two children (boys aged 24 and 21) as well as three cats. For my wife Pat's quilting blog, see Patwig’s Blog.